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Alexander-Bonneau v. Safeway, Inc.

United States District Court, D. Oregon, Portland Division

July 27, 2018

SAFEWAY, INC. Defendant.



         This matter comes before me on pro se Plaintiff Ryan Alexander-Bonneau's Motion for Default [10] and Defendant Safeway, Inc.'s Motion to Dismiss [12]. For the reasons below, I find that service was ineffective. However, I DENY the Motion to Dismiss and instead direct Mr. Alexander-Bonneau to re-serve Safeway within thirty days of this Order. I also DENY the Motion for Default.


         Mr. Alexander-Bonneau brings negligence, breach of contract, and other related claims against Safeway, alleging that Safeway improperly filled his prescriptions and sold him expired pepperoni. Compl. [1]. Mr. Alexander-Bonneau filed the Complaint on January 25, 2018. Compl. [1]. Mr. Alexander-Bonneau, through his mother, mailed a copy of the summons and complaint to Safeway's principal place of business in Pleasanton, California, using USPS priority mail. Bonneau Decl. [19] at 1. USPS tracking information shows the package was delivered on May 10, 2018. Alexander-Bonneau Decl. [11], Ex. 1. On May 22, 2018, counsel for Safeway notified Mr. Alexander-Bonneau by mail of her representation and requested that he notify her of any intention to request default.

         Mr. Alexander-Bonneau filed a Motion for Default on June 15, 2018, arguing Safeway was properly served and failed to respond within the time allowed by the Federal Rules of Civil Procedure. Motion [10]. Five days later, Safeway filed a Motion to Dismiss for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). Motion [12].


         I. Motion to Dismiss for Insufficient Service of Process

         A. Legal Standard

         Rule 12(b)(5) provides that a defendant may move to dismiss an action for insufficient service of process. Fed.R.Civ.P. 12(b)(5). “A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed.R.Civ.P. 4.” Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). “Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.” United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.1984). But “without substantial compliance with Rule 4, neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction.” Direct Mail Specialists, 840 F.2d at 688 (internal quotation marks removed). Once service of process is challenged, “[i]t is plaintiff's burden to establish the validity of service of process.” Roller v. Herrera, No. 3:18-CV-00057-HZ, 2018 WL 2946395, at *2 (D. Or. June 11, 2018).

         B. Analysis

         Rule 4 provides that a corporation may be served in various ways, including by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1), (h). Under Oregon law, Oregon Rule of Civil Procedure (“ORCP”) 7 governs service of process. “In the case of a professional corporation, the primary service method contemplated by the Oregon rules is either personal service or office service on a registered agent, officer, or director or personal service upon any clerk on duty in the office of a registered agent.” Roller, 2018 WL 2946395, at *3 (citing ORCP 7 D(3)(b)(i)). But “[i]f a registered agent, officer, or director cannot be found in the county where the action is filed, ” service may be made by several other alternatives. ORCP 7 D(3)(d)(ii). These alternatives include:

[M]ailing in the manner specified in paragraph D(2)(d) of this rule true copies of the summons and the complaint to: the office of the registered agent or to the last registered office of the corporation, if any, as shown by the records on file in the office of the Secretary of State . . . [or] to any address the use of which the plaintiff knows or has reason to believe is most likely to result in actual notice.

         ORCP 7 D(3)(d)(ii)(C). Paragraph D(2)(d) of ORCP 7 requires that “service by mail shall be made by mailing true copies of the summons and the complaint to the defendant by first class mail and by any of the following: certified, registered, or express mail with return receipt requested.” ORCP 7 D(2)(d)(i).

         To decide whether service was adequate under ORCP 7, courts look to a two-part test provided in Baker v. Foy, 797 P.2d 349, 354 (Or. 1990). First, courts ask: “[w]as the method in which service of summons was made one of those methods described in ORCP 7 D(2), specifically permitted for use upon the particular defendant by ORCP 7 D(3), and accomplished in accordance with ORCP 7 D(2)?” Baker, 797 P.2d at 354. If the answer is “yes, ” then service is presumptively adequate. If not, the second question is whether “the manner of service employed by plaintiff satisf[ied] the ‘reasonable notice' standard of adequate service set forth in ORCP 7 D(1).” Id. at 354-55. The “reasonable notice” standard requires that “[s]ummons shall be served, either within or without this ...

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